Current through Register Vol. XLI, No. 24, June 14, 2024
Section 91-5-3 - Denial, Cancellation or Suspension of Driving Privileges for Medical Reasons3.1. Statutory Provisions. -- W. Va. Code § 17B-2-3 provides that the Division of Motor Vehicles shall not issue or renew a driver's license to any applicant or may cancel the driver's license of any licensee when the Commissioner of Motor Vehicles has good cause to believe that the operation of a motor vehicle on the highways of this State by the applicant or licensee would be inimical to public safety or welfare. Good cause includes, but is not limited to, receipt of an application for license or a written notice submitted pursuant to subsection 9.2. of this rule that indicates the applicant has a medical condition that may affect his or her ability to drive.3.2. Procedures for Original, Renewal, or Duplicate Applications for License. -- Any application for a license which indicates that the applicant has a medical condition that may affect his or her ability to safely operate a motor vehicle must be accompanied by a letter of explanation in as much detail as the Commissioner requires concerning the mental or physical condition of the applicant at the time of application. If a Medical Report Form is required under this section, it must be completed by a Licensed Medical Practitioner. A Licensed Medical Practitioner includes, but is not limited to doctors of medicine, (MD), doctors of osteopathy (DO), physician assistants (PA), advanced practice nurses (APN), and doctors of chiropractics (DC). The Commissioner, after reviewing the letter of explanation, may:
3.2.a. Approve the application for license;3.2.b. Approve the application for license, and impose appropriate restrictions as the applicant's physical or mental condition may require; or3.2.c. Delay the application decision and require the applicant to submit the following: 3.2.c.1. A Medical Report Form completed by a licensed medical practitioner of the applicant's choice who is licensed in the United States who practices in the specialty field of the medical condition under consideration or;3.2.c.2. A Vision Examination Report Form completed by an optometrist or ophthalmologist of the applicant's choice who is licensed in the United States and who practices in the specialty field of the vision condition under consideration; and3.2.c.3. Any other record or other information concerning the applicant or licensee's medical condition or competency to operate a motor vehicle for the Commissioner to consider.3.2.d. After review of the records submitted under subdivision 3.2.c of this rule, the Commissioner may approve the application, approve the application with restrictions, deny the application, order the suspension of the license, order the cancellation of the license or submit the records to the Driver License Advisory Board for further review.3.2.e. The Commissioner, based on standards recommended by the Driver's License Advisory Board, or upon individual review in instances where no standard applies, may take the action indicated in subsection 3.2 of this rule, refuse the application, or order the suspension or cancellation of the license.3.2.f. If an application for driver's license, or application for renewal of driver's license is refused by the Commissioner because of a physical or mental condition, the Commissioner shall notify the applicant within seventy (70) calendar days from the date of application or renewal by certified or registered mail, return receipt requested. The applicant is entitled to a hearing in accordance with subsection 3.6 of this rule on the refusal by the Commissioner to issue or renew a driver's license after a review and recommendation by the Driver's License Advisory Board.3.3. Procedures for Medical or Vision Review. -- Upon receipt of a written opinion submitted pursuant to subsection 9.2 of this rule or other sufficient evidence of a medical condition which may affect a licensee's ability to safely operate a motor vehicle, the Division may require the licensee to submit to a medical or vision review. Upon receipt of a written professional opinion submitted by a licensed medical practitioner pursuant to subdivision 9.2.b of this rule, the Division shall immediately cancel the licensee's driver's license and the licensee may request to proceed with a medical or vision review.3.3.a. The Division may upon written notice of five days require the licensee to present on a form prescribed by the Division of Motor Vehicles to the Commissioner or the Driver's License Advisory Board a: 3.3.a.1. Medical Report Form completed by a licensed medical practitioner of the licensee's choice who is licensed in the United States and who practices in the specialty field of the medical condition under consideration; or3.3.a.2. Vision Examination Report Form completed by an optometrist or ophthalmologist of the licensee's choice who is licensed in the United States and who practices in the specialty field of the vision condition under consideration.3.3.b. The licensee may, in addition to the medical and or vision report forms, submit any other record or documentation concerning his or her medical condition, vision or competency to drive for consideration of the Driver License Advisory Board and the Commissioner.3.3.c. The Commissioner, after reviewing the Medical Report or Vision Examination Report and the recommendation of the Driver's License Advisory Board if applicable, may:3.3.c.1. Determine that the licensee is competent to drive a motor vehicle;3.3.c.2. Determine that the licensee is competent to operate a motor vehicle if certain appropriate restrictions are imposed and impose such restrictions as the licensee's physical or mental condition may require; or3.3.c.3. Determine that the licensee's operation of a motor vehicle in accordance with W. Va. Code § 17B-2-3, is inimical to public safety or welfare, that no appropriate restrictions can be imposed under which the licensee could safely operate a motor vehicle, and order the cancellation of the license until such time as the licensee is permitted to submit further information to determine whether or not he or she is eligible to drive a motor vehicle.3.3.d. Upon entry of an order of cancellation, the Division shall mail the licensee a copy of the order by registered or certified mail, return receipt requested. The licensee may request a hearing in accordance with subsection 3.6 of this rule.3.4. Standards for Medical or Vision Review.3.4.a. Medical. -- The Driver's License Advisory Board shall evaluate each medical case referred to it on an individual basis and make recommendations to the Commissioner for his or her decision.3.4.b. Vision. -- The Division shall test each applicant for licensing to determine if the applicant has no serious visual defects and a visual acuity of at least 20/40 in one eye with or without conventional corrective lenses. For the purposes of this rule, conventional corrective lenses including surgical intraocular transplants and contact lenses are acceptable for meeting the visual acuity requirements. Special equipment or special lens arrangements are not considered conventional for the purposes of this rule. However, applicants for licensing who require biotic type lens arrangements may qualify for a restricted Class G driver's license in accordance with W. Va. Code §17B-2B et seq. and subsection 3.5 of this rule.3.4.b.1. Applicants who do not meet the minimum visual acuity level or who show serious visual defects shall submit a vision examination form to the Division. The form shall be completed by an ophthalmologist or optometrist of the applicant's choice who is licensed in the United States. The Division shall approve the applicant as eligible for licensing if the ophthalmologist or optometrist certifies that the applicant's vision: 3.4.b.1.A. can be corrected with conventional lenses to a visual acuity level of at least 20/60 in one eye;3.4.b.1.B. that there is no evidence of disease or rapid deterioration of vision; and3.4.b.1.C. that the applicant can, in the opinion of the ophthalmologist or optometrist, safely operate a motor vehicle with appropriate restrictions.3.4.b.2. The Driver's License Advisory Board or the Commissioner may consider any applicant who has been evaluated by an ophthalmologist or optometrist as being able to safely operate a motor vehicle. The Board or the Commissioner may consider peripheral vision, depth perception and color recognition in making a driver licensing decision. Additionally, the Commissioner may prescribe a traffic environment vision test be administered to the applicant or licensee by designated employees of the Division of Motor Vehicles and/or the Division of Rehabilitation Services.3.5. Licensing Criteria for Applicants and Licensees with Biotic Telescopic Devices. 3.5.a. This subsection applies to applicants and licensees who use biotic telescopic devices and who wish to obtain or maintain a driver's license in accordance with W. Va. Code §17B-2B et seq.3.5.b. A vision specialist meaning an ophthalmologist or optometrist licensed in the United States shall certify that the applicant's vision can be corrected with the use of a biotic telescopic device without field expanders to meet the minimum visual acuity and visual field standards established in this subsection and shall certify that the applicant meets the other criteria provided in W. Va. Code § 17B-2B-2(b)(1).3.5.c. An applicant shall present a current certificate of acceptance from the Division of Rehabilitation indicating acceptance into the Low Vision Driving Program and a starting date prior to eligibility to take the knowledge examination.3.5.d. The minimum standards for vision for persons who require biotic lenses to operate a motor vehicle are as follows: 3.5.d.1. Visual acuity of 20-40 distance visual acuity or better through a biotic telescope lens not exceeding a scope of 4X and 20-200 distance visual acuity or better through a carrier lens in one eye;3.5.d.2. Visual field of vision with horizontal vision of 120 degrees or better and vertical vision of 70 degrees or better which may be met with the use of one or both eyes; and3.5.d.3. Color vision sufficient to distinguish the traffic light colors red, green and yellow and the colors of turn signals and brake lights;3.5.e. The Division shall impose and remove an applicant or licensee's Low Vision Driver Training Program restrictions based on the Division of Rehabilitation Services individualized evaluation of each applicant.3.5.f. The Division may take action in the form of a warning, modification of restriction, suspension for a fixed term, or revocation against any Class G licensee based on:3.5.f.1. The Division determining that the licensee was operating a motor vehicle in violation of his or her restrictions by receipt of a crash report, ticket, conviction or any other written notification indicating the unsafe operation of a motor vehicle;3.5.f.2. Failure of the applicant or licensee to have a vision report submitted in a timely manner when required by law or requested by the Division; 3.5.f.3. Receipt of a crash report indicating the licensee caused a crash that resulted in bodily injury or death; or3.5.f.3. Determination by the Division of Rehabilitation Services that the licensee no longer meets the minimum requirements to obtain and retain a Class G driver's license.3.6. Administrative Due Process. -- Any applicant or licensee may appeal the Commissioner's decision of denial, suspension, restriction or non-renewal of driving privileges by requesting a hearing receipt of the order. Any request for hearing shall not stay the original order. An applicant or licensee who intends to submit new or additional information not previously considered by the Driver's License Advisory Board shall first submit the new or additional information to the Division for review and recommendation by the Driver's License Advisory Board before proceeding with a hearing.3.6.a. The scope of the hearing is to provide the applicant or licensee the opportunity to show that the Division erred in its decision based upon its records or other evidence previously submitted by the licensee. Only evidence previously submitted by the licensee under the provisions of subsection 3.2, 3.3 and 3.6 of this rule may be considered at the hearing.3.6.b. After the hearing and consideration of all the testimony and evidence in the case, the Division_shall within seventy (70) calendar days, make and enter an order affirming, rescinding, or modifying the Commissioner's original order. If an order is not issued within seventy (70) calendar days, the licensee may file a motion to compel issuance of a decision.